BKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 742

BKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 742

The reinstatement application was dismissed because, although prejudice was neutral and there was some evidence the applicant reported pain, the evidence did not sufficiently justify non-attendance and the factor weighing most heavily was that the proposed appeal had no real prospect of success. The Tribunal had accepted the correct diploma completion date, any date error by the primary judge was typographical and immaterial, and the Tribunal's rejection of claims concerning attacks on family members and the absence of supporting documents involved logical findings and evidentiary assessment within its role.

Jurisdiction
Australia
Judgment Date
28 June 2022
Procedural Posture
Migration Appeal; Interlocutory Application for Reinstatement of Appeal / Application to Set Aside Dismissal Order and Reinstate Appeal After Dismissal in Applicant's Absence
Outcome
Application dismissed with costs fixed in favour of the first respondent.
Legal Topics
['protection Visa Refusal' 'dismissal of Appeal for Non Attendance' 'reinstatement Application' 'reasonable Excuse for Absence' 'prospects of Success' 'prejudice' 'costs']
['migration' 'administrative Law'] ['protection Visa Refusal' 'dismissal of Appeal for Non Attendance' 'reinstatement Application' 'reasonable Excuse for Absence' 'prospects of Success' 'prejudice' 'costs']

Case Brief

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Procedural Posture

Migration Appeal; Interlocutory Application for Reinstatement of Appeal / Application to Set Aside Dismissal Order and Reinstate Appeal After Dismissal in Applicant's Absence

Legal Issues

  1. 1 ['Whether the applicant had a reasonable excuse for failing to attend the appeal hearing on 27 April 2022.' 'Whether reinstatement of the appeal would cause relevant prejudice to the Minister.' 'Whether the applicant had a reasonably arguable prospect of success on the substantive appeal.' "Whether the alleged errors concerning the diploma completion date and attacks on the applicant's brothers disclosed reviewable error by the Federal Circuit Court or the Tribunal."]

Ratio Decidendi

The reinstatement application was dismissed because, although prejudice was neutral and there was some evidence the applicant reported pain, the evidence did not sufficiently justify non-attendance and the factor weighing most heavily was that the proposed appeal had no real prospect of success. The Tribunal had accepted the correct diploma completion date, any date error by the primary judge was typographical and immaterial, and the Tribunal's rejection of claims concerning attacks on family members and the absence of supporting documents involved logical findings and evidentiary assessment within its role.

Court Disposition

Application dismissed with costs fixed in favour of the first respondent.

Orders

  • ["The applicant's interlocutory application filed 18 May 2022 is dismissed." "The applicant pay the first respondent's costs fixed in the sum of $1,000."]