AEY18 v Minister for Home Affairs

The applicant, AEY18, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's refusal to grant her a Protection (Class XA) visa. The applicant, a lesbian woman from Botswana, feared returning due to potential harm based on her sexual orientation. The primary hurdle for the applicant was that her application for judicial review was filed 19 days outside the prescribed 35-day time limit under section 477(1) of the *Migration Act 1958* (Cth). Consequently, before the Court could consider the substantive application, it had to determine whether to grant an extension of time under section 477(2) of the Act.

The legal issues before the Federal Circuit Court were whether to grant the applicant an extension of time to file her application for judicial review, and if so, whether the substantive application had sufficient merit to warrant such an extension. In considering the extension of time, the Court was required to assess factors including the length of the delay, the explanation provided for the delay, any prejudice to the respondent, and the merits of the proposed application. The Minister opposed the extension primarily on the grounds of an inadequate explanation for the delay and a lack of merit in the substantive application.

The Court found that while the applicant's initial explanation for the delay was not entirely satisfactory, her subsequent clarification, supported by evidence of confusion arising from interactions with the Department of Home Affairs regarding her appeal rights, constituted an adequate explanation for the 19-day delay. The Court also noted that the delay was insubstantial and that no significant prejudice would be suffered by the Minister. However, the Court determined that the applicant's substantive application lacked merit. The applicant's originating application contained no grounds of review, and the additional evidence provided was either inadmissible or did not demonstrate jurisdictional error by the Tribunal. The Tribunal had thoroughly considered the country information and the applicant's claims, concluding that she had not established a real chance of persecution or serious harm upon return to Botswana.

Ultimately, the Court refused the applicant's application for an extension of time. This refusal was based on the lack of merit in the substantive application, specifically the absence of any arguable grounds of jurisdictional error by the Tribunal, despite the Court's finding that the explanation for the delay was adequate.