FEDERAL COURT OF AUSTRALIA
BSE17 v Minister for Home Affairs [2018] FCA 1926
Appeal from: BSE17 v Minister for Immigration & Anor [2018] FCCA 201 File number: VID 246 of 2018 Judge: MOSHINSKY J Date of judgment: 30 November 2018 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – protection visa – whether Tribunal acted without evidence or illogically – whether Tribunal failed to consider an integer of the appellant’s claim or failed to take into account relevant information – appeal dismissed Legislation: Migration Act 1958 (Cth), s 45AA
Migration Regulations 1994 (Cth), reg 2.08F
Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
Date of hearing: 14 August 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 47 Counsel for the Appellant: Ms SM Kelly Solicitor for the Appellant: Asylum Seeker Resource Centre Counsel for the First Respondent: Mr B Petrie Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 246 of 2018 BETWEEN: BSE17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
30 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The application for an extension of time to file a notice of appeal be granted.
2.The draft notice of appeal received by the Court on 2 March 2018 stand as the appellant’s notice of appeal.
3.The appeal be treated as instituted and heard instanter.
4.The appeal be dismissed.
5.The appellant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.
THE COURT DIRECTS THAT:
6.Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.
7.In the absence of any agreement pursuant to paragraph 6 of these orders, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).
8.Within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
9.In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
The applicant, who it will be convenient to refer to as the appellant, arrived in Australia by boat in…
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- Case
- [2018] FCA 1926
- Decision Date
CaseChat Overview and Summary
The court examined the evidence presented by the appellant and the findings of the Tribunal. It was noted that the Tribunal had accepted the occurrence of the events in 2007 and the appellant's involvement in a physical confrontation with security forces. The court found that the Tribunal's decision was not without evidence or illogical, and there was no indication that it had failed to consider relevant information or an integer of the appellant's claim. The Tribunal had made detailed findings and provided a reasoned explanation for its decision. The court concluded that the Tribunal had properly exercised its discretion and that the appeal did not succeed on any of the grounds raised.
As a result, the appeal was dismissed, and the appellant was ordered to pay the Minister's costs, which were to be determined by a lump sum. The court also directed the parties to file any agreed proposed minute of orders for the costs within 14 days, and if no agreement was reached, to follow a specific process for determining the appropriate costs.
Orders
Orders of the court
1. The application for an extension of time to file a notice of appeal be granted.
2. The draft notice of appeal received by the Court on 2 March 2018 stand as the appellant’s notice of appeal.
3. The appeal be treated as instituted and heard instanter.
4. The appeal be dismissed.
5. The appellant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.
THE COURT DIRECTS THAT:
6. Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.
7. In the absence of any agreement pursuant to paragraph 6 of these orders, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).
8. Within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
9. In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.