Aws15 v Minister for Immigration

The applicant, a citizen of the Democratic Republic of Congo, sought judicial review of a decision by the Refugee Review Tribunal (now the Administrative Appeals Tribunal) which affirmed the Minister for Immigration and Border Protection's refusal to grant him a Protection (Class XA) visa. The application for judicial review was filed significantly out of time, prompting the applicant to seek an extension of time under s.477(2) of the *Migration Act 1958* (Cth). The court was required to determine whether to grant this extension of time.

The primary legal issue before the Federal Circuit Court was whether it was necessary in the interests of the administration of justice to grant the applicant an extension of time to file his judicial review application. This required the court to consider established factors, including the extent and reasons for the delay, any prejudice to the respondent, the impact on the applicant if an extension was refused, the public interest, and crucially, the merits of the proposed judicial review application. Furthermore, the court had to consider the requirements of Rule 44.05(2)(c) of the *Federal Circuit Court Rules 2001* (Cth), which mandates that an application for an extension of time must be supported by an affidavit explaining the delay and demonstrating why an extension is necessary in the interests of justice.

In its reasoning, the court noted that the applicant's affidavit in support of the judicial review application was minimal, merely confirming his name and attaching the Tribunal's decision. Critically, the applicant had failed to file any affidavit explaining the substantial delay in lodging the judicial review application, nor had he provided any evidence to demonstrate why an extension was necessary in the interests of justice, as required by Rule 44.05(2)(c). The applicant's stated reasons for the delay – lack of legal representation and time to find a lawyer – were deemed insufficient, particularly given the significant period of delay and the lack of any supporting evidence. The court also observed that the applicant had failed to comply with earlier directions to file amended applications and outlines of submissions.

Consequently, the court dismissed the applicant's application for an extension of time. As the judicial review application was filed outside the statutory time limit and no extension was granted, the application for judicial review was rendered incompetent.