Da Costa Gomes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This matter concerned an application for an extension of time to seek judicial review of a decision made by the Administrative Appeals Tribunal. The applicant, who appeared unrepresented, sought to extend the 35-day statutory period within which to file her application for judicial review. The Tribunal's decision, which affirmed the refusal of a visa application, was made on 11 March 2021 and notified to the applicant on 15 March 2021. The applicant lodged her application for judicial review on 16 April 2021, one day outside the prescribed time limit. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the respondent. The case was heard by Kendall J in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether it was necessary in the interests of the administration of justice to grant the applicant an extension of time to file her application for judicial review, pursuant to section 477(2) of the Migration Act 1958 (Cth). This required the Court to be satisfied that the criteria under section 477(2)(b) of the Act were met. In determining this, the Court considered factors typically relevant to such applications, including the length of the delay and any prejudice to the parties, the adequacy of the explanation for the delay, and the merits of the proposed substantive application for judicial review.

Kendall J noted that while the applicant had made a written request for an extension of time, satisfying section 477(2)(a) of the Act, her accompanying affidavit did not adequately explain the delay or why an extension was in the interests of justice. Although the Court could dispense with this requirement, it invited the applicant to address the relevant factors. The Court found that the delay was only one day, and the applicant had explained that this was due to her agent not forwarding correspondence promptly. However, the Court was not satisfied that the substantive application had sufficient merit to warrant an extension of time, particularly given the applicant's failure to respond to the Tribunal's invitation to comment on information that led to the affirmation of the decision.

Ultimately, Kendall J was not satisfied that it was necessary in the interests of the administration of justice to grant the extension of time. The application for an extension of time was therefore dismissed.