AOY20 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 937
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AOY20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 937
File number: MLG 455 of 2020 Judgment of: JUDGE GOSTENCNIK Date of judgment: 18 September 2024 Catchwords: MIGRATION – protection visa – protection visa denied – judicial review application –late application for judicial review – extension of time request to undertake judicial review – lengthy delay - no satisfactory explanation for delay –merits of the substantive application very weak -application for an extension of time dismissed. Legislation: Acts Interpretation Act 1901 (Cth), s 36
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 11
Migration Act 1958 (Cth), ss 5H, 5J, 36, 414, 425, 425A, 426, 430, 441A, 476, 477.
Cases cited: Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Citizenship & Anor v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
MZABP v Minister for Immigration and Border Protection
Re Patterson; Ex parte Taylor [2001] HCA 51
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 26 April 2024 Date of hearing: 2 September 2024 Place: Melbourne Advocate for the Applicant: Self-represented litigant Advocate for the Respondents: Mr Plitsch
Solicitor for the Respondents: The Australian Government Solicitor ORDERS
MLG 455 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AOY20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application to extend the period within which to make an application for judicial review is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Gostencnik
The applicant is a citizen of Malaysia who applied for a protection visa on 23 March 2016: Court Book (CB)11-CB74, having arrived in Australia on 15 February 2016: CB31. In his protection visa application, the applicant said he left Malaysia because of the 'political and economic status' of Malaysia which had worsened. He said the currency valuation had decreased dramatically, prices were higher and did not match basic salaries, and he had become poor: CB42. The applicant did not respond to other questions on the protection visa application form which asked whether he experienced harm in Malaysia or whether he thought he would be harmed or mistreated if he returned to Malaysia. Apart from a copy of his passport, the Applicant did not provide any other documents for consideration.
A delegate of the then Minister for Immigration and Border Protection refused to grant the visa on 29 July 2016 because the delegate was not satisfied the applicant was a refugee within the meaning of s 5H(1) of the Migration Act 1958 (Cth) (Act) with the consequence that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act: CB82. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there was a real risk he would suffer significant harm. Consequently the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa): CB83.
The applicant sought review of the delegate's decision by application made on 23 August 2016 to the Administrative Appeals Tribunal (Tribunal): CB84-CB85. On 29 August 2016 the Tribunal acknowledged receipt of the review application and advised the applicant that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible: CB87. On 27 September 2017, the applicant was invited by the Tribunal to attend a hearing scheduled for 9:30 am on 8 November 2017 to give evidence and present arguments relating to the issues in his case: CB95. The invitation also asked the applicant to complete and return an enclosed 'Response to hearing invitation - MR Division' form to confirm his attendance at the hearing and to use the form to attach additional or new information which the applicant wished the Tribunal to consider: CB95. Both the acknowledgement and the invitation correspondence were sent to the applicant by email at the address given in his review application: CB85, CB86-CB87, CB94-CB95. The applicant did not provide any documents to the Tribunal.
The applicant attended the scheduled Tribunal hearing at which he gave evidence and presented arguments and was assisted in so doing by an interpreter in the Malay language: CB104, CB111 at [3].
By decision delivered on 27 November 2017, the Tribunal affirmed the delegate's decision: CB110. The Tribunal's Decision and Statement of Reasons was sent to the applicant by email at the address given in his review application in accordance with the election made: CB84, CB85, CB108-CB109.
After detailing some introductory matters, the Tribunal sets out the criteria for the grant of a protection visa under the Act at [5]-[9] of its Decision and Statement of Reasons. At [10] the Tribunal deals with the import of Ministerial Direction No.56 on the decision under review. At [12] the Tribunal sets out the applicant's claims made in his protection visa application. Those claims have been earlier recounted in these reasons.
At [13] of the Tribunal's Decision and Statement of Reasons, the Tribunal records that at the hearing the applicant was asked to clarify what he meant by the political and economic status of the country getting worse, and records the applicant's response to the effect that he worked low-paying jobs and had been unable to save money, and that the 'political leaders' had no concern for a person like him who was not educated and made it difficult for such people to obtain decent work. At [14] the Tribunal notes the applicant gave evidence that he inherited some money from his parents when they passed, but that the bulk of the money was taken by his brother leaving the applicant with little and that subsequently they have had a fractured relationship. At [15] the Tribunal records that the applicant gave evidence that he would like to stay in Australia and become a citizen, but if unable to so do, he would like to stay in Australia until he can save money to start his own business in Malaysia.
The Tribunal accepts at [15] of its Decision and Statement of Reasons that the applicant had concerns about employment and the cost of living in Malaysia but noted that he had been employed consistently in Malaysia while living there. At [16] the Tribunal notes the applicant did not raise any specific claims about fearing harm for political reasons nor did he give any detailed evidence about political issues in Malaysia. Accordingly, the Tribunal finds at [16]-[17] that the applicant could obtain employment in Malaysia to allow him to subsist and there was not a real chance of serious or significant harm based on the country’s political situation should the applicant return to Malaysia. Also at [17], the Tribunal concludes that the applicant's claimed harm did not amount to serious harm and it was not satisfied he had a well-founded fear of persecution as required by s 5J of the Act and therefore found the applicant was not a refugee within the meaning of s 5H. Accordingly, the applicant did not meet the protection criterion in s 36(2)(a) of the Act.
The Tribunal concludes at [18]-[20] of its Decision and Statement of Reasons, that the applicant did not have a well-founded fear of persecution on return to Malaysia, and did not meet the complementary protection criterion in s 36(2)(aa) of the Act.
By application filed on 11 February 2020 in the then Federal Circuit Court of Australia, the applicant seeks judicial review of the Tribunal's decision. An application to the Court for review of a decision of the Tribunal must be made within 35 days of the date of the Tribunal's decision: s 477(1) of the Act. The Tribunal made its decision on 27 November 2017. Considering that the final day for an application to be made within time was 1 January 2018, the applicant had until 2 January 2018 to make the application: s 36(2) of the Acts Interpretation Act 1901 (Cth). The applicant therefore made his application 770 days after the time prescribed. Section 477(2) of the Act allows the Court, by order, to extend the 35-day period as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to do so, and the Court is so satisfied.
The applicant's grounds in support of an extension of time specify the following (reproduced verbatim):
(1)I did not have a lawyer and advice that I could seek a review again at Court.
(2)I was having financial hardship and was not aware that I could get an exemption for court fee.
The correct approach to the exercise of the Court's discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2) was explained by Kiefel CJ, Gageler, Keane and Gleeson JJ in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 as follows:
10.The "may" in the chapeau to s 477A(2) confers an authority to exercise the jurisdiction conferred under s 476A(1)(b) or s 476A(1)(c) of the Act, and is not merely facultative in nature. The power is discretionary in the sense that it involves an evaluative judgment as to a state of satisfaction.
11.At a high level of generality, it may be accepted that the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court's exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).
12.On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
13.In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. Those principles, which are non-exhaustive of the factors that may be relevant to an extension of time under s 477A(2), include that "[t]he merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted".
14.Guidelines for the proper exercise of the power in s 477(2) of the Act (which is in relevantly similar terms to s 477A(2)) were stated by the Full Court of the Federal Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In particular, the Full Court stated that an evaluation of the merits of the proposed substantive application that goes further than an "impressionistic evaluation of the [applicant's] proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction". The Court added that "the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review" and, if "a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power".
15.The reasoning of the Full Court in DHX17 was informed by the earlier decision of Mortimer J in MZABP v Minister for Immigration and Border Protection concerning s 477(2), endorsed on appeal by a different Full Court. In MZABP, Mortimer J noted that the subject matter of an application under s 477(2) is not whether the applicant will ultimately be successful in challenging the decision under review. Her Honour considered that the "correct approach" to the assessment of the merits of the proposed application, for the purpose of deciding whether to extend time, "may be expressed by the use of language such as whether a ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success'". Her Honour also expressed the view that "[i]f a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level ... into a fuller consideration of the arguments for and against each ground of review ... that is not a function appropriate to a discretion such as that contained in s 477(2)".
16.Underlying Mortimer J's reasoning was an analysis of the nature of the power conferred by s 477(2). Her Honour considered the legislative history and extrinsic materials but concluded that they shed no particular light on the content of the phrase "in the interests of the administration of justice". Ultimately, her Honour characterised the judgment to be made under s 477(2)(b) as involving a conclusion that "it is appropriate, or fair and equitable, that a litigant should have the opportunity for which the legislative scheme provides: namely, a review of the lawfulness of the decision said to affect the litigant, conducted in accordance with judicial process and subject to considered judicial determination". Her Honour also expressed the view that it will seldom be appropriate to refuse to extend time where a ground of review is properly described as weak as opposed to hopeless, citing the observation of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs, made in relation to s 11 of the Administrative Decisions (Judicial Review) Act, that "a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it".
17.French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
19.It follows that the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken. [Footnotes omitted]
The extent of the delay - 770 days - is by any measure lengthy. Despite orders made by Registrar Cummings on 25 March 2024, which allowed the applicant to file any amended application, written submissions and additional evidence by 12 April 2024, the applicant did not do so, and he has not filed any evidence about the financial hardship under which he says he suffered, the extent of it, nor the period. No explanation is proffered about the financial hardship alleged or how it explains the delay in making this application or any part of it.
During the hearing of the extension of time application, the applicant asserted that the claims he had made before the Tribunal were not his actual claims and that information about his claims in the original protection visa application were prepared by someone else and he just signed the document. He said he now wants the opportunity to tell the Tribunal his real story.
Despite several attempts during the extension of time hearing to elicit an explanation for the delay, the applicant did not provide one, much less one that was satisfactory. The applicant's desire for an opportunity to tell the Tribunal his real story was repeatedly advanced in response to questions about the reason or reasons for delay.
As to the applicant's capacity to engage a lawyer to seek advice about a review of the Tribunal's decision, while some latitude may be allowed to unrepresented litigants, an inability to engage a lawyer alone does not provide a satisfactory explanation for a delay: Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17] and the authorities cited therein. Ultimately the applicant is responsible for ascertaining and accessing any review rights available to him and to ascertain any time limits to the exercise of those rights. To the extent that the applicant may have been unaware of the time limit attached to making a judicial review application to this Court, an unrepresented litigant's ignorance of the time limit for a review is not, without more, a satisfactory explanation for delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9]; SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38]. Here there is nothing more. Moreover, the applicant was on notice of his right to seek review and the relevant time for doing so by reason of the Tribunal's Information about Decisions – MR Division fact-sheet, which accompanied the notification of the Tribunal's decision: CB 117-118. Even considering that the information is in English, a diligent litigant would have taken prompt action to seek assistance with a translation. The need for the information to be translated does not explain the lengthy period of the delay.
Given the matters discussed above, both the length of the delay and the absence of any (or any satisfactory) explanation for the delay weighs against a conclusion that it is necessary in the interests of the administration of justice to make an order extending time.
While the Minister accepted he would suffer no substantive prejudice if the extension was granted, the mere absence of prejudice is not a sufficient basis to warrant the grant of an extension of time: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]. Moreover, I agree with the Minister that it is in the interests of the administration of justice that prescribed time limits are adhered to, in order to ensure a predictable and orderly conclusion to appeal or review processes.
The application for judicial review sets out 7 paragraphs said to be the applicant's grounds of review. Grounds 1 and 2 contend that the applicant did not attend the hearing and was unaware of the hearing. These contentions are plainly factually incorrect. As earlier noted, the applicant attended the scheduled Tribunal hearing on 8 November 2017 at which he gave evidence and presented arguments and was assisted in so doing by an interpreter in the Malay language: CB104, CB111 at [3]. The applicant accepted, during the hearing of his extension of time application before the Court, that he had attended the Tribunal and that he told a story to the Tribunal during the hearing he was instructed to tell, albeit a story which the applicant now wants to disavow and substitute it with his real story. Consequently grounds 1 and 2 have no prospect of succeeding at final hearing.
Grounds 3 and 7 are narrative and contend the applicant made a valid application, and that he is seeking judicial review. As such the grounds do not engage with establishing jurisdictional error. To the extent that ground 3 also contends the Tribunal did not 'investigate' whether the applicant met the protection visa criteria, this is replicated in ground 4 considered below.
In substance, grounds 4 to 6 taken together advance two contentions. First, that the Tribunal did not fulfil its duty to 'review' the delegate's refusal decision under s 414 of the Act and did not 'investigate' the applicant's case before making its decision. Second, the Tribunal's decision was unfairly made because the Tribunal did not afford the applicant procedural fairness in not giving him an opportunity to provide evidence and present arguments in support of his case.
The first contention - the Tribunal's alleged failure to investigate and to carry out its statutory duty to review the delegate's decision - is not arguable, at least not without particulars which the applicant has had a chance to provide but has not done so. The duty imposed on the Tribunal by the Act is a duty to review: Minister for Immigration and Citizenship & Anor v SZIAI [2009] HCA 39 at [25]. A failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review and such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. SZIAI at [25]; Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at 453 [189] and the authorities cited therein. But the Tribunal is not obliged to conduct an inquiry to discover whether the applicant's case might be better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36], [49].
Section 425A of the Act deals with the Tribunal giving notices of invitations to appear before it. Section 426 relevantly provides:
(1) In the notice under section 425A, the Tribunal must notify the applicant:
. . .
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice. [underlining added]
Here, the applicant made no such request. But even if an applicant requests that the Tribunal take oral or written evidence from a witness, the Tribunal is not required to obtain such evidence. This reinforces the fact that the Tribunal is under no general duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43].
On the materials before the Court, the Tribunal appears to have reviewed the delegate's decision in accordance with its obligation to do so under s 414 of the Act. As described earlier (and discussed further below) the Tribunal complied with the codified procedural fairness obligations and decided the review in accordance with s 430.
The second contention alleging the Tribunal denied the applicant procedural fairness in not affording him an opportunity to give evidence and present arguments also does not appear to be arguable.
As earlier noted, on 27 September 2017, the Tribunal invited the applicant to attend a hearing, in accordance with its obligation to do so under s 425(1) of the Act. The invitation complied with the requirements under s 425A. The invitation gave the applicant notice of the time, day and place of the hearing: s 425A(1). It was given to the applicant by the method specified in s 441A(5)(b) - by email to the nominated email address: s 425A(2)(a). It gave a period of notice that was more than the 'prescribed period' specified in reg 4.35D(3)(b)(i) of the Migration Regulations 1994 (Cth): s 425A(3). The fact-sheet entitled Information about hearings which accompanied the invitation contained a statement to the effect of s 426A: s 425A(4).
Despite his assertion in grounds 1 and 2 of the judicial review application, it is clear the applicant attended the hearing, and was assisted in giving evidence and making arguments by an interpreter in the Malay and English languages. The Tribunal's Decision and Statement of Reasons discloses that, at the hearing, the applicant was prompted to give further details of his protection claims, and the Tribunal recorded his responses: CB112 at [13]. And as already noted, the applicant accepted that at the hearing before the Tribunal he told the Tribunal a story he was instructed to tell, albeit one from which the applicant now wants to resile.
The central issue in the delegate's decision was whether the applicant had a well-founded fear of persecution in Malaysia, or whether his circumstances were such that there was a real risk he would suffer significant harm if returned to Malaysia. The same issue arose for consideration on review by the Tribunal. The applicant was on notice of the issue in his review and so could meaningfully respond to it at the hearing without the Tribunal independently identifying it for him.
A review by the Tribunal of the delegate's decision to refuse a visa application is a merits review and it provides the opportunity for a complete rehearing of all the issues relevant to the application. The Tribunal may reconsider evidence before the delegate as well as any new evidence that an applicant might seek to adduce. The Tribunal decides the merits of the application, unencumbered by the delegate's earlier decision or the reasoning adopted by the delegate in making the earlier decision. The Tribunal must determine the correct or preferable decision in all the circumstances.
Although given an opportunity to do so, the applicant did not bring forth any new evidence or different claim as a basis for his protection visa application. As I have earlier noted, during the hearing before the Court, the applicant asserted that the claims he had made before the Tribunal were not his actual claims and that information about his claims in the original protection visa application were prepared by someone else and he just signed the document. He said he now wants the opportunity to tell the Tribunal his real story. This amounts to no more than a plea to be given an opportunity to run a better or new case before the Tribunal. But the Tribunal does not commit jurisdictional error because it did not consider an argument or claim that was not made, or evidence that was not adduced.
As the applicant was unrepresented before the Court, I have reviewed the Tribunal's written Statement of Decision and Reasons and the material in the Court Book filed by the first respondent with an eye to identifying jurisdictional error beyond dealing merely with the applicants' proposed review grounds, but I have not identified any arguable case of jurisdictional error.
For these reasons, the merits of the substantive judicial review application are very weak and so this also weighs against a conclusion that an order for an extension of time is necessary in the interests of the administration of justice.
There are no other matters raised by the applicant, or matters of which I am aware, which should be considered in assessing whether to allow an extension of time.
In the circumstances, the absence of a satisfactory explanation for the lengthy delay and the very weak merits of the substantive application weigh heavily against a conclusion that it is in the interests of the administration of justice for the Court to grant the applicant an extension of time to make the application. This is so despite the absence of any prejudice to the first respondent. Consequently, I am not persuaded that it is necessary in the interests of the administration of justice for the Court to grant the applicant an extension of time.
The application for an order extending the 35-day period within which the applicant's judicial review application may be made is dismissed.
I will hear the parties on costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 18 September 2024
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