BZABK v Minister for Immigration and Citizenship

[2012] HCASL 189

BZABK

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2012] HCASL 189
S217/2012

1. The applicant is a citizen of the People's Republic of China.  He arrived in Australia on 20 April 2008 on a student visa valid until 15 March 2011. He applied for a Protection (Class XA) visa on 24 February 2011 which was refused by a delegate of the first respondent on 14 April 2011.

2. On 14 July 2011, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision.  In his application, the applicant claimed his parents had been jailed for two years in China for attending Christian meetings and that he had subsequently been discriminated against because of his Christianity.  These claims were inconsistent with information contained in his student visa application and in an application his mother had lodged for a protection visa.  The Tribunal invited the applicant to respond to certain adverse information but he neither provided additional evidence, nor appeared before the Tribunal.  The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason should he return to China. 

3. On 3 May 2012, the Federal Magistrates Court of Australia (Burnett FM) dismissed the applicant's application for judicial review of the Tribunal's decision.  Burnett FM refused to grant the applicant an extension of time within which to bring his application, and held the applicant had, in any event, failed to make out any of the grounds of review he pressed.

4. On 18 July 2012, the Federal Court of Australia (Foster J) dismissed the applicant's appeal from the whole of Burnett FM's decision. Foster J held that an appeal against Burnett FM's order refusing an extension of time was precluded by s 476A(3)(a) of the Migration Act 1958 (Cth). His Honour further held that to the extent that an appeal could be sought against Burnett FM's order dismissing the substantive application for review, that appeal would inevitably fail by reason that the application was brought out of time.

5. The application for special leave to appeal does not raise any question of law which would justify the grant of special leave.  An appeal to this Court would enjoy no prospects of success.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

S.M. Kiefel
12 December 2012 S.J. Gageler