Du (Migration)

This matter concerned a review application lodged out of time by the applicant, Mr Du, in relation to a decision by the Minister to refuse his application for a Subclass 600 (Visitor) visa. The Administrative Appeals Tribunal (AAT) had dismissed Mr Du's application for review on the basis that it was lodged outside the prescribed time limit and that no extension of time should be granted. Mr Du then sought judicial review of the AAT's decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the AAT had erred in law by refusing to grant Mr Du an extension of time to lodge his application for review. This required the Court to consider the principles governing the exercise of discretion by the AAT in granting extensions of time under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).

The Court found that the AAT had failed to properly consider all relevant factors when exercising its discretion to refuse an extension of time. Specifically, the AAT had not adequately taken into account the reasons provided by Mr Du for the delay in lodging his application, nor had it properly weighed the merits of his substantive application for the visa. The Court reiterated that the AAT's discretion must be exercised judicially, considering all circumstances and applying the relevant legal tests.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.