DKX17 & Anor v Minister for Immigration & Anor

The applicants, citizens of Fiji, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's refusal to grant them protection visas. The applicants had claimed fear of harm based on their Indian race, general crime in Fiji, extortion, and lack of housing and income, with the second applicant also fearing sexual assault. The Tribunal had accepted much of their account, including past persecution and subjective fear, but ultimately rejected their claims, finding they did not give rise to a real chance of serious or significant harm, and that their fears were not well-founded based on country information and specific findings. The Minister had also previously decided not to intervene in their favour.

The primary legal issue before the court was whether to grant the applicants an extension of time to file their application for judicial review. This required the court to consider whether the applicants' explanation for the delay was satisfactory, and whether their application had sufficient prospects of success to warrant an extension in the interests of justice. The court also had to balance the prejudice to the applicants against the public interest in the finality of administrative decisions.

In determining the application for an extension of time, Emmett J applied the principles articulated in *Re Commonwealth of Australia; Ex Parte Marks*. His Honour noted that an extension can only be granted if necessary to do justice between the parties, requiring consideration of the history of the matter, the conduct of the parties, the nature of the litigation, and the consequences of the decision. Crucially, for applications seeking relief against public bodies, the public interest in the finality of litigation is a significant factor. Emmett J referred to the principle that rules of court must be obeyed and that ample time is generally provided for such applications. He also highlighted that an applicant's inability to obtain favourable legal advice is not typically a ground for extending time, and that the efficacy of public acts cannot be held hostage by an applicant's search for legal advice.

The court refused the application for an extension of time. Emmett J found that the applicants had not provided a satisfactory explanation for the significant delay in filing their application for judicial review. Furthermore, having regard to the applicants' inability to obtain favourable legal advice within the prescribed timeframes and the lack of any conduct by the respondent that contributed to the delay, the court concluded that the applicants did not have an arguable case for relief. Consequently, it was not in the interests of justice to extend the time for them to seek judicial review, particularly given the public interest in the finality of administrative decisions.