EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs

In the case of EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs, the applicant, a citizen of Malaysia, sought an extension of time to seek judicial review of the Minister's decision to refuse him a Protection (Class XA) visa. The applicant arrived in Australia in November 2015 and applied for the visa in December 2015, claiming that he had a relationship with a married woman in Malaysia and that the husband threatened to kill him if he returned. The delegate refused the visa application in March 2016, and the applicant appealed to the Tribunal. The Tribunal invited the applicant to attend a hearing in September 2016, but he failed to respond or attend the hearing, leading to the dismissal of his application for review. The applicant then sought an extension of time to seek judicial review, arguing that he did not receive notification of the Tribunal's decision and that he had a reasonable explanation for the delay.

The legal issues before the court were whether the applicant had a reasonable explanation for the delay in seeking judicial review and whether the court should exercise its discretion to grant an extension of time. The court noted that it has a broad discretion to grant an extension of time under s 477(2) of the Act but that the delay must be properly explained and the extension of time must be in the interests of justice. The court considered the length of the delay, the explanation for the delay, and the merits of the application but found that the applicant's delay of over 21 months was excessive and not properly explained. The applicant claimed that he was misled by a "friend" about his application to the Tribunal and that he simply "missed the hearing date," but there was no explanation for why he did not inquire about the outcome of his application for review or seek assistance from any other source during the two-year period between filing the application and ascertaining the result. There was also no explanation of why the applicant did not receive notification of the Decision when the address for service given by the applicant to the Tribunal was the same as the address given to the delegate and also to this Court.

The court concluded that the applicant had not provided a reasonable explanation for the delay in seeking judicial review and that the extension of time was not needed in the interests of justice. The court dismissed the application for an extension of time. The court noted that the applicant had failed to respond to the court's summary of the submissions made on behalf of the Minister and that the applicant could not otherwise assist the court. The court found that the delay was excessive and not properly explained, and that the extension of time was not in the interests of justice. The court dismissed the application for an extension of time.