BZADJ v Minister for Immigration and Border Protection

The matter of BZADJ v Minister for Immigration and Border Protection involves an Albanian national, BZADJ, who arrived in Australia on a partner visa in 2005 and has remained in the country since. After a series of visa applications and refusals, BZADJ sought an extension of time to commence an appeal against a decision of the Refugee Review Tribunal, which affirmed the refusal of her protection visa application. The respondent, the Minister for Immigration and Border Protection, did not oppose the application, but argued that the application was not supported by a satisfactory explanation. The primary issue before the court was whether the applicant should be granted an extension of time to commence an appeal, despite the inadequacy of the explanation provided and the respondent’s non-opposition to the application. The court had to balance the respondent’s non-opposition against the applicant’s failure to provide a reliable and adequate explanation for the delay, and consider the potential prejudice to the applicant if the application were refused.

The court recognised that the explanation provided by BZADJ in support of her application was unsatisfactory and unreliable. However, it noted that the respondent did not oppose the application and that there was no evidence of prejudice to the respondent if the extension was granted. The court also considered the prospects of success of an appeal, which it found to be reasonably arguable. The court concluded that despite the inadequate explanation, it was appropriate to grant the extension of time sought by BZADJ. The court found that the application was out of the ordinary, but the circumstances justified granting the extension.

In light of the above, the court granted BZADJ leave to commence her proposed appeal by 4 August 2017. The court did not find it necessary to consider the merits of the appeal or whether it had a reasonable chance of success. The court’s decision was based on the balance of the factors considered, including the respondent’s non-opposition, the lack of prejudice to the respondent, and the reasonably arguable prospects of success of an appeal. The court’s decision demonstrates the court’s willingness to exercise its discretion in appropriate circumstances, even in the absence of a satisfactory explanation for the delay in commencing an appeal.

The court made an order that BZADJ is granted leave to commence an appeal by 4 August 2017. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.