CTT23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 274
•25 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CTT23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 274
File number: PEG 271 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 25 March 2024 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to seek review of a decision made by a Registrar – where the Registrar dismissed an application seeking reinstatement of a judicial review application – where the judicial review application had earlier been dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 because the applicants failed to appear at a callover – extension of time refused. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 3.04, 13.06, 17.05, 21.01, 21.02, 21.04
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254, 256
Migration Act 1958 (Cth) ss 36, 425, 425A, 426A, 441A, 476
Migration Regulations 1994 (Cth) reg 4.35D
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
CTT23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 158
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 21 March 2024 Place: Perth Applicants: The applicants appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 271 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CTT23
First Applicant
CTU23
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
25 MARCH 2024
THE COURT ORDERS THAT:
1.The application for an extension of time to seek review of the decision made by a Registrar on 26 February 2024 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 LADHAMS:
INTRODUCTION
On 21 December 2023 a judicial review application filed by the applicants was dismissed by a Registrar of this Court because the applicants failed to appear at a callover listed before the Court. The applicants sought reinstatement of their judicial review application and on 26 February 2024 a Registrar made orders which had the effect that the judicial review application was not reinstated. The application presently before the Court is an application in a proceeding filed on 13 March 2024 by which the applicants seek review of the decision made by the Registrar on 26 February 2024 (Review Application).
The Review Application was filed out of time and the applicants made an oral application for an extension of time at the hearing of the Review Application. I cannot determine the Review Application unless I first exercise my discretion to grant an extension of time to the applicants.
I have decided, in all the circumstances, not to grant an extension of time to the applicants to file the Review Application. My reasons for this decision are explained below.
FACTUAL AND PROCEDURAL BACKGROUND
On 26 October 2017 the applicants applied for protection visas. That application was refused by a delegate of the Minister on 19 February 2018. The applicants sought review of that decision by the Administrative Appeals Tribunal (Tribunal).
On 20 September 2023 the Tribunal sent to the applicants a notice inviting them to attend a hearing on 23 October 2023. The notice was sent to the applicants by email to the email address set out in their application to the Tribunal. The hearing was to take place in person.
The Tribunal records suggest that the Tribunal sent two SMS messages to the applicants to remind them of the hearing date. The SMS messages were sent to the telephone number recorded in the applicants’ application to the Tribunal. The SMS messages were sent on 16 October 2023 and 20 October 2023 respectively.
The applicants did not appear at the hearing on 23 October 2023. The Tribunal’s record of the hearing indicates that the Tribunal made two unsuccessful attempts to call the applicants on the telephone number provided in the application.
On 24 October 2023 the Tribunal made a decision to dismiss the application (Dismissal Decision) pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (Migration Act). A copy of the Dismissal Decision was sent to the applicants on 24 October 2023 via email using the email address recorded in their application to the Tribunal. The covering letter advised that the applicants may seek reinstatement of the Dismissal Decision by 7 November 2023.
On 15 November 2023 the Tribunal confirmed the Dismissal Decision (Confirmation Decision), noting that the applicants had been advised that they could seek reinstatement of the Dismissal Decision within 14 days but had not done so. The effect of the Confirmation Decision was that the delegate’s decision was taken to be affirmed: s 426A(1F) of the Migration Act.
The applicants filed an application for judicial review on 21 November 2023 seeking judicial review of the Dismissal Decision (Judicial Review Application).
The Judicial Review Application was listed for callover before a Registrar of this Court on 21 December 2023. The applicants were advised of that callover by email sent on 7 December 2023 to the email address recorded in the Judicial Review Application. The applicants did not appear at the callover and the Registrar dismissed the Judicial Review Application for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
On 9 January 2024 the applicants filed an application in a proceeding seeking reinstatement of the Judicial Review Application (Reinstatement Application). The Reinstatement Application was heard by a Registrar of this Court on 23 February 2024 and on 26 February 2024 the Registrar dismissed the Reinstatement Application with costs, giving detailed reasons for the decision: CTT23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 158 (CTT23).
The applicants then filed the Review Application, seeking review of the Registrar’s decision dismissing the Reinstatement Application, on 13 March 2024.
HEARING BEFORE THE COURT AND RELEVANT DOCUMENTS
The Review Application came before me for hearing on 21 March 2024. At that hearing, I advised the applicants that the Review Application was filed out of time and they orally made an application for an extension of time (Extension of Time Application).
I referred the parties to the list of documents before the Registrar, identified at [2] of CTT23. Both parties confirmed that those documents were relevant to the determination of the Review Application. In addition to those documents, I had before me CTT23, the Review Application, an affidavit of the first applicant filed on 13 March 2024 and the Minister’s written submissions in relation to the Review Application, filed on 20 March 2024.
In circumstances where the applicants had not provided any evidence in relation to the Extension of Time Application, including in relation to the reasons for the delay in filing the application, I gave them an opportunity at the hearing to give oral evidence in relation to the Extension of Time Application. The first applicant chose to give oral evidence at the hearing. The applicants confirmed that there was no further evidence they wanted to give in relation to the reasons they believe I should reinstate the Judicial Review Application.
Both parties were given an opportunity to make submissions at the hearing. At first, the applicants chose not to make any submissions. After Ms Ellis advanced clear and comprehensive submissions on behalf of the Minister, the second applicant submitted in reply that the applicants were genuinely not aware of the time limit of seven days.
There is no transcript before the Court of the submissions made at the hearing before the Registrar. The Registrar did, however, provide comprehensive and detailed reasons, in which he referred to the submissions made by the applicants. In circumstances where the applicants chose not to advance submissions before this Court, I have considered the submissions they advanced before the Registrar, as those submissions are described in CTT23.
GENERAL PRINCIPLES RELEVANT TO THE RESOLUTION OF THIS MATTER
Extension of Time Application
The Court has a discretion to extend the time for the applicants to file the Review Application. In considering whether to grant the extension of time, the Court will often consider matters such as the length of the delay, whether the applicants have a reasonable explanation for the delay, and prejudice to the respondent or other persons and the merits of the underlying application: see Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley Developments) at 348-349.
Review of the Registrar’s decision
The Registrar, when making his decision on the Reinstatement Application, was exercising the power in r 17.05(2) of the GFL Rules, which is a power delegated pursuant to s 254(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and r 21.01(1) of the GFL Rules.
When a Registrar exercises delegated power pursuant to s 254 of the FCFCOA Act, s 256 of the FCFCOA Act allows a party to the proceeding to seek review of the exercise of the powers by the Registrar within the time prescribed by the Rules of the Court, or within any further time allowed in accordance with the Rules.
Pursuant to r 21.02 of the GFL Rules, any application for review of the exercise of power by a Registrar must be made within seven days, although the Court may extend the time to file the application.
Pursuant to r 21.04(1) of the GFL Rules, the Court reviews the Registrar’s decision by way of a hearing de novo. This means that, if I grant the extension of time, I hear the Reinstatement Application afresh.
Power to reinstate the Judicial Review Application
In considering the Extension of Time Application, it is appropriate to consider whether the applicants have reasonable prospects of success in relation to the underlying application, which in this case is the Review Application. Consideration of the Review Application requires me to consider the Reinstatement Application and it is convenient to address the relevant principles relating to the Court’s power to order reinstatement of the Judicial Review Application.
The Reinstatement Application, in effect, asks the Court to set aside the order made on 21 December 2023 dismissing the Judicial Review Application pursuant to r 13.06(1)(c) of the GFL Rules in circumstances where the applicants failed to appear at the callover. The Court has the power to set aside this order pursuant to r 17.05(2)(a) of the GFL Rules, which relevantly provides:
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party…
The power to reinstate the Judicial Review Application is a discretionary power and requires me to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 (FBS18) at [50].
In deciding whether it is in the interests of justice to reinstate the Judicial Review Application, it is often appropriate for the Court to take into account matters such as:
(a)whether the applicants have a reasonable explanation for their non-appearance at the callover;
(b)whether there is any prejudice to the Minister;
(c)whether the grounds of the Judicial Review Application have reasonably arguable prospects of success: see, for example, MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7].
These matters are not, however, an exhaustive list but rather are matters that may be considered in the exercise of the Court’s discretion: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4]; AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32]; FBS18 at [58].
CONSIDERATION OF THE EXTENSION OF TIME APPLICATION
Extent of the delay
The Registrar’s decision was made on 26 February 2024. The Review Application was therefore ordinarily due to be filed on or before 4 March 2024, and it was not filed until 13 March 2024.
At the hearing, the Court and the Minister proceeded on the basis that the application was filed nine days late. However, upon further reflection, I consider it more appropriate to assess the extent of the delay as eight days. This is because 4 March 2024 was a public holiday in Western Australia and the Perth Registry of the Court was closed. Pursuant to r 3.04(4) of the GFL Rules, the applicants could have filed the Review Application on 5 March 2024.
I do not consider that identifying the extent of the delay as eight days rather than nine days fundamentally changes the nature of the Extension of Time Application or would lead to any material difference in the submissions advanced by the parties. My findings are the same irrespective of whether the extent of the delay is appropriately calculated as eight days or nine days.
Counsel for the Minister described the delay as ‘not insignificant’. I accept this characterisation of the delay. While eight days may seem like a short delay, it is appropriate to view the delay in the context of the prescribed time frame of seven days. The applicants took more than twice the time permitted by the GFL Rules to file the Review Application.
The delay is not, however, of an extent that materially weighs against the grant of an extension of time.
Do the applicants have a reasonable explanation for the delay?
The first applicant’s explanation for the delay was that he became aware that the application was rejected after 26 February 2024 and then a friend introduced him to an agent, and he was told that a lawyer could review the documents and he would still have a chance to lodge a review. The first applicant gave evidence that he did not know of the deadline and when he found out about the deadline, it had already passed. The first applicant said that he then went to another lawyer and they prepared the documents.
I accept the Minister’s submission that the explanation for the delay offered by the first applicant is vague and lacking in detail.
I accept that the applicants may not have been aware that they had only seven days to file the Review Application within time. That, of itself, does not mean that there is an adequate explanation for the delay, as it is for the applicants to ensure that they are aware of the relevant time limits. There is no evidence on the Court file of any lawyer on the Court record for the applicants and the first applicant was unable to name the lawyer who assisted him, although he did provide a name for the migration agent.
The explanation offered by the applicants does not weigh in favour of the grant of an extension of time, but nor does it weigh against the grant of an extension of time in any material way. If the underlying application had reasonable prospects of success, a delay of eight days, in circumstances where I have accepted that the applicants were not aware of the relevant time limit, would not be a barrier to the grant of the extension of time.
Prejudice to the Minister as a result of the delay
The Minister, appropriately, does not claim to face any prejudice as a result of the delay in filing the Review Application. However, mere absence of prejudice is not of itself sufficient to warrant the grant of an extension of time: Hunter Valley Developments at 349.
The Minister submitted that there is a strong public interest in the finality of litigation and administrative decision-making. I accept that this is the case. However, I would not place significant weight on that factor in exercising my discretion in relation to the Extension of Time Application in this particular matter.
Merits of the underlying application
The underlying application for the purposes of the Extension of Time Application is the Review Application. However, as the Review Application would require de novo consideration of the Reinstatement Application, these reasons address the merit, at a reasonably impressionistic level, of the Reinstatement Application.
In considering whether the applicants have a reasonably arguable case in relation the Reinstatement Application, I consider the three matters identified in MZYEZ (see [27] above) to be relevant and I also have regard to the lack of delay in seeking reinstatement.
Do the applicants have a reasonable explanation for not appearing at the callover?
The applicants were notified of the listing for callover by email sent on 7 December 2023 to the email address recorded in their Judicial Review Application. The listing notice relevantly said (emphasis in original):
Please be advised that your matter has now been listed for Callover before Judicial Registrar Cummings on Thursday, 21 December 2023 at 9.00am AWST (WA time) / 11.30am ACDT (SA time).
The Callover listing will be conducted by telephone (dial in). You must join the telephone hearing 15 minutes before it starts (at 8.45am AWST) by dialling [telephone number] followed by the conference ID: [conference ID]
…
It is very important you attend the Callover listing. If you miss the Callover listing and do not appear by telephone, your matter may be dismissed and costs may be ordered against you.
I am satisfied from this notice that the applicants were properly notified of the listing for callover, and they have not suggested that they were unaware of the listing.
The first applicant gave evidence about the reasons for his failure to appear at the callover in an affidavit that accompanied his reinstatement application. The first applicant deposed:
2.I lodged the application for appealing online on 28 Nov 23, and I received an email for callover on Thursday, 21 December 2023 at 9am (WA time), however, I mistakenly anticipated a call for me to participate in the callover telephone conference.
3.Throughout the entire morning, I did not receive any phone calls and only realised my error when I rechecked my email. Subsequently, I made several attempts to call the provided number, but unfortunately, no one answered the phone.
…
5.I acknowledge that I made a mistake and was unable to attend the teleconference due to my health condition and language barrier.
The content of this affidavit evidence is substantially the same as the reason the first applicant gave for not attending the callover in an email that he sent to the Court on 24 December 2023.
The applicants did not give any new evidence or provide submissions about the reasons for their failure to attend the callover during the hearing in relation to the Review Application.
At the hearing of the Reinstatement Application, the first applicant apparently said that he asked his friend to assist him in understanding the Court’s listing notice email, but that his friend did not speak very good English: see CTT23 at [7].
The listing notice for the callover provided to the applicants was very clear. While it is plausible that the applicants may have had some difficulty in understanding the listing notice if their English language skills are limited, I am not convinced that the failure to appear at the callover was solely attributable to any language barriers. The first applicant’s evidence was that after waiting throughout the morning for a telephone call, he rechecked his email and realised his error. This suggests that he had sufficient English language skills to review the email and understand that he was meant to call the Court. In any event, if the applicants did not speak sufficient English to understand the listing notice, it was incumbent on them to seek assistance in understanding the notice from somebody who understood English well enough to explain the content of the notice to them. It does not appear that they did this, noting the acknowledgement apparently made by the first applicant at the hearing before the Registrar to the effect that the friend they asked to assist them did not speak very good English.
To the extent that the first applicant’s email to the Court and affidavit suggest that he had a health condition that prevented him from attending the callover by telephone, I do not accept the explanation. There is no further evidence before the Court in relation to any medical condition and there is no evidence of the nature of any medical condition the first applicant may have been diagnosed with, the reasons why that would prevent him from participating in a short callover by telephone, and the reasons why it would prevent the second applicant from appearing at the callover.
I am not satisfied that the applicants have provided an adequate explanation for their failure to attend the callover. This would weigh against reinstatement of the Judicial Review Application. The explanation is not, however, so weak that it would necessarily mean that the prospects of reinstatement are low, irrespective of the merit of the Judicial Review Application. However, for the reasons explained further below, I am not satisfied that the Judicial Review Application has any reasonable prospects of success, and I place significant weight on that factor.
Is there any undue delay in seeking reinstatement?
The applicants’ Judicial Review Application was dismissed on 21 December 2023 and they filed the Reinstatement Application on 9 January 2024, less than three weeks after the application was dismissed. There was no undue delay by the applicants in seeking reinstatement, particularly taking into account the number of public holidays in the period between the dismissal of the Judicial Review Application and the filing of the Reinstatement Application.
Accordingly, this is not a matter where undue delay would be likely to weigh against the applicants’ prospects of persuading the Court that the Judicial Review Application should be reinstated.
Is there any prejudice to the Minister?
The Minister in his submissions referred to the public interest in the finality of litigation and administrative decision-making. As indicated above, I accept that this public interest exists. However, I would not place any significant weight on this consideration in deciding whether or not to order reinstatement of the Judicial Review Application if there were any reasonably arguable merits of the judicial review application.
Does the Judicial Review Application have reasonable prospects of success?
I accept the submission advanced by Counsel for the Minister that the lack of merit in the underlying Judicial Review Application is a critical factor in this matter.
In the Judicial Review Application, the applicants indicated that the decision to be reviewed was the Dismissal Decision. There is nothing in the application to expressly indicate that they also seek review of the Confirmation Decision, but given the relationship between the two decisions I am prepared to treat the Judicial Review Application as relating to both the Dismissal Decision and the Confirmation Decision.
The sole ground of the application reads (reproduced without alteration):
DIBP AND AAT MEMBER REFUSED MY PROTECTION VISA AS THEY THOUGHT I DID NOT SATISFY SUBSECTION 36(2) OF THE MIGRATION ACT 1958.
To the extent that this refers to the decision made by the delegate of the Minister, it is beyond the power of the Court to review. This is because the delegate’s decision was reviewable by the Tribunal under Part 7 of the Migration Act and is therefore a ‘primary decision’ within the meaning of s 476(4)(a) of the Migration Act. Pursuant to s 476(2)(a) of the Migration Act, the Court does not have jurisdiction to review primary decisions.
To the extent that the ground seeks review of the Tribunal decision, it fundamentally misconceives the nature of the Tribunal decision. The Tribunal did not consider whether the applicant met the criteria in s 36(2) of the Migration Act. Rather, it dismissed the application for review without any further consideration in circumstances where the applicants failed to appear at the hearing, and then confirmed that dismissal.
I have reviewed the Dismissal Decision and the Confirmation Decision independently, at a reasonably impressionistic level, and do not identify any reasonably identifiable grounds which could be advanced to assert jurisdictional error in the Dismissal Decision or the Confirmation Decision.
The Tribunal invited the applicants to appear before it to give evidence and present arguments, as it was required to do under s 425 of the Migration Act. The notice of the invitation complied with the formal requirements of s 425A of the Migration Act, in that it:
(a)indicated the day on which, and that time and place at which, the applicants were scheduled to appear: s 425A(1) of the Migration Act;
(b)was given to the applicants by email at the address indicated in the application: ss 425A(2) and 441A(5) of the Migration Act;
(c)gave the applicants more than 14 days’ notice of the hearing: s 425A(3) of the Migration Act and reg 4.35D(3) of the Migration Regulations 1994 (Cth); and
(d)contained a notice setting out what may happen if the applicants fail to appear at the hearing: ss 425A(4) and 426A of the Migration Act.
The applicants, having been invited to a hearing before the Tribunal, did not appear before the Tribunal on the day on which, or at the time and place at which, they were scheduled to appear. This enlivened the discretions of the Tribunal in s 426A(1A) of the Migration Act, which allow the Tribunal to make a decision on the review without taking any further action to allow or enable the applicants to appear before it, or to make a written statement dismissing the application without any further consideration of the application or the information before the Tribunal.
The Tribunal’s discretionary powers must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [24], [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [4] (Kiefel CJ), [80] (Nettle and Gordon JJ). There is nothing in the evidence before the Court to suggest that the Tribunal did not act reasonably in dismissing the application without further consideration of the materials before it, pursuant to s 426A(1A)(b) of the Migration Act. The applicants made no submission at the hearing of the Review Application that the Tribunal acted unreasonably. It appears from CTT23 at [28] that the first applicant submitted to the Registrar that he did not receive the telephone calls from the Tribunal on the day of the hearing. I agree with the Registrar’s observation that there is not necessarily any inconsistency between the evidence that the Tribunal attempted to make the calls and the first applicant’s assertion that he did not receive the calls. In any event, I also agree with the Registrar that the exercise of the discretion in s 426A(1A)(b) is not preconditioned on the Tribunal telephoning, or attempting to telephone the applicant. It was open to the Tribunal to take into account the two SMS reminders sent to the applicants and the attempts to telephone the applicants when they failed to appear in person at the hearing in deciding to dismiss the application.
After making the Dismissal Decision, the Tribunal notified the applicants of that decision, and that notice was sent to the applicants by email to the same email address that they recorded in the application to the Tribunal. The notice and the enclosed information sheet clearly indicated to the applicants that they had until 7 November 2023, being 14 days from the date of receiving notice of the Dismissal Decision, to seek reinstatement of the application. The notice also indicated that if the applicants did not seek reinstatement within that time, the Dismissal Decision would be confirmed.
In circumstances where the applicants did not apply for reinstatement within 14 days of receiving notice of the Dismissal Decision, the Tribunal had no option other than to confirm the Dismissal Decision: s 426A(1E) of the Migration Act. The Tribunal made no apparent error in making the Confirmation Decision.
Accordingly, considering the ground of judicial review raised by the applicants and considering the Tribunal decision independently, I cannot be satisfied that the Judicial Review Application has any reasonable prospects of success. As Mortimer J (as her Honour then was) explained in CAL15 at [4], whether the applicant has an arguable case on judicial review is an important consideration in a reinstatement application:
…because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
Conclusion in relation to the merits of the Review Application
The Review Application does not have reasonable prospects of success. In reaching this view, I place significant weight on the lack of any reasonably arguable case that is or could be advanced by or for the applicants in relation to the Judicial Review Application. My assessment of the merits of the Judicial Review Application, at a reasonably impressionistic level, outweighs other considerations such as the lack of prejudice to the Minister and the lack of delay in seeking reinstatement.
Conclusion in relation to the Extension of Time Application
I then balance my findings in relation to the considerations relevant to the Extension of Time Application. Again, I place significant weight on my finding that the underlying application, in this case the Review Application, which requires me to consider whether it would be in the interests of justice to reinstate the Judicial Review Application, has no reasonable prospects of success. While I have above accepted that the delay, while seemingly short, is not insignificant and have expressed concerns about the inadequacies in the explanation for the delay, these concerns might have been overcome if I had assessed that the applicants had a reasonably arguable case on the Review Application if the extension of time was granted. However, taking into account all relevant factors, I have decided not to grant the applicants an extension of time to file the Review Application.
CONCLUSION
In circumstances where I have declined to grant the extension of time, the appropriate order is to dismiss the Extension of Time Application. It is neither necessary nor appropriate to further consider the Review Application.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 25 March 2024
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