DFF17 v Minister for Immigration and Border Protection

The case of DFF17 v Minister for Immigration and Border Protection concerns an application for judicial review of a decision made by a delegate of the Minister for Immigration and Border Protection, which refused the applicants' application for Refugee and Humanitarian (Class XB) visas. The applicants, a husband and wife from Afghanistan, applied for the visas as part of the Community Proposal Pilot program, which was supported by the Brotherhood of St Lawrence, Australia. The applicants were interviewed by a delegate of the Minister on 16 January 2017, and their visa application was refused on 19 April 2017. The applicants filed their application for judicial review on 18 July 2017, which was 56 days outside the statutory time limit, and consequently, they also sought an extension of time within which to make the review application.

The legal issues before the court were whether the delay in filing the judicial review application was justified and whether an extension of time should be granted. The applicants argued that the delay was not excessive and provided an explanation for the delay, while the Minister argued that the delay was inordinate and weighed against the granting of an extension of time. The court considered the relevant statutory provisions, including section 477(2) of the Migration Act 1958 (Cth), which allows the court to grant an extension of time within which a review application can be made if it is satisfied that it is necessary in the interests of the administration of justice to do so.

The court found that the delay in filing the judicial review application was not excessive, and the applicants had provided a satisfactory explanation for the delay. The court also considered the merits of the underlying application and found that ground 1 of the application was made out. The court concluded that it was necessary in the interests of the administration of justice to grant the extension of time, and the applicants' application for judicial review would be heard on its merits.

The court granted the extension of time and ordered that the applicants' application for judicial review be heard on its merits. The court also noted that the power to extend the time for filing a review application, such as that permitted by section 477(2) of the Migration Act, was recently the subject of judicial consideration by the High Court in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCA 28. The analysis in that case applies equally to section 477.