DNH17 v Minister for Immigration & Anor

The applicant, a citizen of Fiji, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's refusal to grant him a protection visa. The applicant had claimed to fear harm in Fiji due to his Indian race and Hindu religion, and also cited financial hardship and lack of accommodation. The Tribunal had accepted much of the applicant's account of past harassment and assault but ultimately found that his claims did not establish a real chance of serious or significant harm, nor did they meet the criteria for complementary protection. The Minister had also previously decided not to intervene in the matter.

The primary legal issue before the court was whether to extend the time for the applicant to file his application for judicial review, given that the application was filed significantly out of time. This required the court to consider whether the applicant's explanation for the delay was satisfactory and whether the proposed judicial review had sufficient prospects of success to warrant an extension in the interests of justice.

Emmett J refused the application for an extension of time. His Honour referred to the principles outlined in *Re Commonwealth of Australia; Ex Parte Marks*, emphasising that an extension of time can only be granted if necessary to do justice between the parties, considering the history of the matter, the conduct of the parties, the nature of the litigation, and the consequences of the decision. Crucially, the court also considered the public interest in the finality of administrative decisions. Emmett J noted that a significant delay, such as the 17 months in this case, without any conduct by the respondent contributing to the delay, would generally lead to a refusal of an extension, as parties have a vested right to the finality of decisions. His Honour also found that the applicant's inability to obtain favourable legal advice was not a sufficient ground for extending time, and that the applicant did not appear to have an arguable case for relief.