BYF15 v Minister for Immigration and Border Protection

The applicants, Indian citizens seeking protection visas, applied for leave to appeal the Federal Circuit Court's decision not to set aside its earlier decision summarily dismissing their judicial review proceedings and reinstate the proceedings. The Federal Circuit Court had declined to reinstate the proceedings under rule 16.05(2) of the Federal Circuit Court Rules 2001 (Cth). The applicants argued that the Tribunal failed to consider the fourth applicant's medical condition. The legal issues before the court were whether the Federal Circuit Court's decision was attended by sufficient doubt to warrant reconsideration and, if it was assumed to be wrong, whether substantial injustice would be suffered by the applicants if leave to appeal were refused.

The court found that the application for leave to appeal should be dismissed. The primary judge concluded that there was no reasonable excuse for the applicants' failure to appear at the hearing on 4 December 2015, and that there was no sufficiently arguable case of jurisdictional error to warrant setting aside the earlier judgment in the interests of the administration of justice. The primary judge also considered that the applicants did not have a reasonably arguable prospect of success on the substantive application. The court noted that the exercise of the power under rule 16.05(2) of the FCC Rules was discretionary, and that the applicants needed to demonstrate that the primary judge made an error of the kind identified in House v R (1936) 55 CLR 499 at 505 in the exercise of discretion. The court found that the applicants had not demonstrated such an error.

The application for leave to appeal is dismissed. The first and second applicants are to pay the Minister’s costs of the application as agreed or assessed.