BDQ16 v Minister for Immigration and Border Protection [2017] FCA 918

BDQ16 v Minister for Immigration and Border Protection [2017] FCA 918

Read in context and fairly, the Tribunal's words "on balance" in paragraph [51] referred only to its acceptance that the Applicant would, as a returnee to Sri Lanka, come into contact with Sri Lankan authorities. The Tribunal then separately considered whether that circumstance gave rise to a real chance of serious harm and reached an adverse state of satisfaction. The Tribunal did not apply an impermissible balance of probabilities test to the ultimate protection question. The proposed new ground therefore lacked merit, and the Federal Circuit Court committed no error in refusing to reinstate the application for an extension of time.

Jurisdiction
Australia
Judgment Date
11 August 2017
Procedural Posture
Application Under S 39 B of the Judiciary Act 1903 (cth) Seeking Relief in Respect of a Federal Circuit Court Decision / Final Determination of Originating Application
Outcome
Originating Application dismissed with costs.
Legal Topics
['protection Visa Refusal' 'judicial Review' 'extension of Time' 'reinstatement of Application' 'jurisdictional Error' 'well Founded Fear of Persecution' 'real Chance of Serious Harm']
['migration Law' 'administrative Law' 'practice and Procedure'] ['protection Visa Refusal' 'judicial Review' 'extension of Time' 'reinstatement of Application' 'jurisdictional Error' 'well Founded Fear of Persecution' 'real Chance of Serious Harm']

Case Brief

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Procedural Posture

Application Under S 39 B of the Judiciary Act 1903 (cth) Seeking Relief in Respect of a Federal Circuit Court Decision / Final Determination of Originating Application

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in refusing to reinstate the application for an extension of time.' "Whether the Tribunal erroneously assessed the applicant's fear of persecution by reference to whether harm would occur on the balance of probabilities rather than by reference to a real chance of harm." 'Whether the words "on balance" in paragraph [51] of the Tribunal\'s reasons disclosed error under the principles in Rajalingam.' 'Whether there was error in the exercise of discretion not to reinstate the application for an extension of time.']

Ratio Decidendi

Read in context and fairly, the Tribunal's words "on balance" in paragraph [51] referred only to its acceptance that the Applicant would, as a returnee to Sri Lanka, come into contact with Sri Lankan authorities. The Tribunal then separately considered whether that circumstance gave rise to a real chance of serious harm and reached an adverse state of satisfaction. The Tribunal did not apply an impermissible balance of probabilities test to the ultimate protection question. The proposed new ground therefore lacked merit, and the Federal Circuit Court committed no error in refusing to reinstate the application for an extension of time.

Court Disposition

Originating Application dismissed with costs.

Orders

  • ['The Originating Application filed on 28 April 2017 is dismissed.' 'The Applicant is to pay the costs of the First Respondent.']