BVL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, BVL18, a Sri Lankan Tamil citizen, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) that affirmed the refusal of his Safe Haven Enterprise Visa (SHEV). The applicant had arrived in Australia in 2012 and had previously applied for and been refused a protection visa. The Minister had exercised personal intervention powers to allow the applicant to lodge a new protection visa application, which was refused by a delegate. This decision was affirmed by the Refugee Review Tribunal. The applicant subsequently applied for a SHEV, which was also refused by a delegate, and this decision was affirmed by the Tribunal on 28 February 2018. The applicant sought an extension of time to file his application for judicial review.

The primary legal issue before the court was whether to grant the applicant an extension of time to file his application for judicial review. This required the court to consider whether the applicant's explanation for the delay in filing was satisfactory and whether the proposed application for judicial review had sufficient prospects of success to warrant extending time in the interests of justice.

Emmett J refused the application for an extension of time. His Honour noted that the applicant had not provided a satisfactory explanation for the significant delay in filing the application for judicial review, which was filed approximately 18 months after the Tribunal's decision. The court found that the applicant's reasons for the delay, including difficulties in obtaining legal advice and the need to gather further evidence, were not sufficiently compelling. Furthermore, the court considered the merits of the proposed judicial review and concluded that it did not have sufficient prospects of success. The Tribunal had made detailed findings of fact, including that the applicant had changed his evidence at each stage of the process, that his claims regarding witnessing a sexual assault and intervening were not accepted, and that his claims regarding imputed political opinions and fear of harm from Sri Lankan authorities were not substantiated by the evidence or country information. Consequently, the court determined that it would not be in the interests of justice to extend the time for filing the application.